CHAN WANG LIK NICK v. LAI FOOK WAH

HCPI 740/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 740 OF 2008

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ASSESSMENT OF DAMAGES

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Introduction

1.  By the Statement of Claim dated 9 October 2008, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages arising out of the negligent driving of a medium goods vehicle (“the MGV”) bearing registration number EC9905 by the Defendant at Yuen Long, New Territories, Hong Kong on 30 May 2006.

2.  Interlocutory judgment on liability was obtained on 23 January 2009 with damages to be assessed.

The Accident

3.  According to the Statement of Claim, the Plaintiff was a passenger on board of a public light bus bearing registration number EZ2168 (“the PLB”) on the date of the accident.

4.  The Defendant was the driver and the owner of the MGV with a trailer.  At around 0607 hours, the Defendant was driving the MGV along the west bound 3^rd lane of Ma Wang Road, Yuen Long, New Territories, Hong Kong, heading the junction with Ma Miu Road.  The Defendant failed to pay heed to the traffic light at the said junction.  He drove across the same notwithstanding the fact that the traffic light had changed to amber before he reached the junction.  As a result, there was a collision between the PLB and the MGV (“the Accident”).  The Plaintiff sustained injuries by reason of the Accident.

The Injuries and Treatments

5.  After the Accident, the Plaintiff was admitted to the Accident and Emergency Department of Tuen Mun Hospital for medical treatment.  Medical examination revealed tenderness over the neck and right chest wall.  The Plaintiff was treated and discharged on the same day without hospitalization.

6.  The Plaintiff attended the Ambulatory Clinic of Pok Oi Hospital on 3 June 2006 (4 days after the accident) because of back pain.  Medical examination revealed pain over the lumbar area but with no radiation to the lower limbs.  He was referred for physiotherapy.

7.  Between June and September 2006, the Plaintiff attended 11 sessions of physiotherapy treatment at the Tuen Mun Hospital. The Plaintiff attended Tin Shui Wai Health Centre on 16 June 2006.  The diagnosis was back pain.  The Plaintiff was referred to the Psychiatric Clinic, Physiotherapy Department and Orthopaedic Clinic.

8.  The Plaintiff also sought treatments from Dr. Poon Kai Ming, orthopaedic specialist, and Dr. Vinca W T Chan, chiropractor, between 31 July 2006 and 12 February 2007 for his back pain.

9.  Dr. Poon arranged the Plaintiff to have MRI scan of the lumbar spine.  This was done on 2 September 2006.  No significant abnormality was found.

10.  The Plaintiff consulted Dr. M C Cheung, a clinical psychologist, on 18 August 2006 because of persistent back and chest pain, insomnia and worry about his injuries.  The Plaintiff was referred to the Castle Peak Hospital where he was diagnosed to be suffering from Adjustment Disorder on 12 February 2007.  He was treated with antidepressant.

11.  On 23 May 2007, the Plaintiff attended an occupational therapy programme at the Tuen Mun Hospital.  He was advised to perform home rehabilitation exercise and pain management for his back pains.

12.  Between April and July 2008, the Plaintiff attended 10 sessions of physiotherapy treatment at Pok Oi Hospital to reduce his back pain.  The Plaintiff also consulted the Pain Centre at Alice Ho Mui Ling Nethersole Hospital on 29 July 2008 for his back pain and chest pain.  He was prescribed medication and was provided with information on chronic pain management.

13.  Thereafter the Plaintiff had received and is still receiving physiotherapy treatments, pain treatments, psychological treatments, psychiatric treatments and treatments at Orthopaedics Department of Tuen Mun Hospital.

The Joint Medical Examination

14.  Plaintiff was examined by Dr. Wong See Hoi, orthopaedic specialist for the Plaintiff and Dr. Lau Hoi Kuen, orthopaedic specialist for the Defendant, jointly on 16 November 2007.  The doctors agreed that the Plaintiff’s back tenderness detected was genuine and was compatible with persistent soft tissue inflammation over the back.  The back condition had reached maximal medical improvement.  He would have on and off back pain especially while lifting heavy objects, on strong exertion or after prolonged sitting or walking.  Treatment would be required on a need-to basis.

The Plaintiff’s Case 

15.  The Plaintiff was born on 8 January 1976.  He was 30 by the time of the accident.  He is 34 at the date of this assessment.

16.  The Plaintiff gave evidence in Court.  He adopted the contents of all his 4 witness statements as evidence.

17.  The Plaintiff told the Court that before the Accident, he worked as a salaried tourist guide for Sun Flower Travel Service Ltd (“Sun Flower”). He also had a part-time job at a bar at night time. 

18.  The Plaintiff said he was unable to work as a tourist guide after the Accident because he cannot lift heavy weight.  He faced difficulties in handling luggages for the tour group members which was part of his duties as a tourist guide.  In this regard, the Plaintiff is responsible to handle luggages for check-in at the airport and to load luggages onto and unload  the same from the coach.

19.  While the Plaintiff worked as a tourist guide again sometime since July/August 2009, he cannot lead tour groups for long duration or groups with too many members.  The Plaintiff cannot walk for over 30 minutes and therefore cannot lead tour groups with a lot of walking.  The Plaintiff told the Court that while the local tourist guide was responsible to lead the tour group and introduce the scenic spots to the group members, the Plaintiff was responsible to supervise the work of the local tourist guide and to take care of the whole tour group.  The Plaintiff had to follow the group all the time.  It was not possible for the Plaintiff to sit on the coach and leave the tour group in the hands of the local tourist guide.  If he walked over 30 minutes, he will suffer pain at his back.  It will be more painful if he walked more.

20.  The Plaintiff accepted that in order not to suffer pain, theoretically, he could walk for 20 to 25 minutes and then sit down to take a rest and walk again.  However, it is not feasible.  The Plaintiff must accompany the tour group all the time and it is not permissible for him to ask the group to take rest regularly like that or for him to leave the group and to take a rest himself.  It is also not feasible for the Plaintiff to carry any portable crutch-chair so that he can take a rest at any time because it will adversely affect his image as a tourist guide.

21.  There are 2 witnesses for the Plaintiff.  One of them is Mr. Danny Mok who was a colleague of the Plaintiff at Sun Flower before the Accident.  He also adopted the contents of his written statement as his evidence.

22.  Mr. Mok has been working as a salaried tourist guide for Sun Flower since end of 2004.  Prior to that, he worked as tourist guide for other 2 travel companies for around 5 years. Mr. Mok’s evidence supported the Plaintiff’s version concerning the job responsibilities of a tourist guide and different heads of commission/rebate.  Mr. Mok said his monthly earning was in the range between HK$32,100 and HK$42,100.  The average is HK$37,100.  He was promoted to Grade B+ tourist guide in November 2006 and therefore the average size of tour group which he led was 32 members.

23.  The other witness is Mr. Kwan Kwong Kin.  He was the owner of a bar known as Fuji Pub (“the Pub”).  He transferred the Pub to a Chan Lai Yee in or about 2004.  Yet, he remained and still is a responsible person of the Pub.

24.  Mr. Kwan told the Court that the Plaintiff began to work as a part time worker at the Pub since 2002.  It was up to the Plaintiff to decide how many nights he wanted to work.  Normally, the Plaintiff worked for around 6 hours per night and around 15 nights per month.  The Plaintiff was paid at $60 per hour.

25.  The Plaintiff was responsible to entertain the customers at the Pub.  He had to chat and drink with the customers in order to boost the sales of drinks.  The Plaintiff did not return to work at the Pub after the Accident.

26.  The Defence calls no evidence.

Pain, Suffering and Loss of Amenities

27.  The Plaintiff is still suffering from low back pain radiating to the left buttock at times.  He could not sleep well because of the pain.  He has to take analgesics once or twice a day to kill the pain and psychiatric drugs for depression.

28.  He cannot walk or sit for over 30 minutes and cannot lift objects over 5 kgs in weight.

29.  The Plaintiff told the Court that he cannot play football or go for scuba diving because of the injuries he suffered.

30.  Mr. Clough, Counsel for the Plaintiff, referred me to the following authorities and submitted that the Court should award $225,000 under this head.  Ali Shoukat v Hang Seng Bank Ltd, (HCPI 3/2003, Suffiad J, 23 June 2004); Ng Lai Fan Fanny v The Hong Kong Golf Club (HCPI 511/2005, Saunders J, 4 April 2007); Ng Lai Ping Carol v Tung Wah Group of Hospitals (HCPI 374/2006, Burrell J, 10 April 2007); Li Sau Keung v Maxcredit Engineering Ltd (HCPI 530/2001, Deputy Judge Carlson, 21 October 2002).

31.  Ms. Lee, Counsel for the Defendant, submitted that the award under this head should be $120,000.  She referred the Court to the following authorities.  Shek Kam Ching v Po Kee Construction Engineering Ltd & others ([2002] 3 HKLRD 795); Lam Wa Lai v Startlong Development Ltd trading as Lai Ying Hair Salon (DCPI 624/2003, HH Judge M Ng, 14 April 2005); Poon Yat Chiu v Aes Scaffolding Engineering Ltd (DCPI 223/2005, HH Judge Chow, 21 March 2007); Tam Kwok Man v The Kowloon Motor Bus Company (1933) Ltd (HCPI 755/2001, 11 July 2003).

32.  I have considered the authorities and the injuries suffered by the Plaintiff.  This case falls short of the serious category in Lee Ting Lam case.  In all the circumstances, I am of the view that an award in the sum of $180,000 is reasonable.

Pre-Trial Loss of Earnings

33.  In his Revised Statement of Damages, the Plaintiff claimed $33,850 per month as his earnings as a salaried tourist and $5,500 per month as a part-time worker at the Pub. The Defendant only accepted a monthly earnings of $15,000 and the Plaintiff only suffered loss of earnings for a period of 6 months.

(a)  Tourist Guide

34.  The income as a tourist guide comes from the following 6 heads:

(i) Basic salary

(ii)   Compulsory customer tips

(iii) Additional customer tips

(iv)    Insurance commission

(v)  Commission for extra excursion

(vi)    Shopping commission

35.  The Plaintiff claimed a basic salary of $1,750 per month.  This is accepted by the Defendant.  He also claimed, on a monthly basis, $10,000 for compulsory customer tips, $2,000 for additional customer tips, $100 insurance commission, $5,000 for extra excursion and $15,000 for shopping commission (per Revised Statement of Damages).

36.  For compulsory tips, there is no dispute that at the conclusion of a trip, the members of the tour group will pay tips, at the rate ($X per day) suggested by the travel company, to the tourist guide who will share the same with the travel company, the local tourist guide and coach driver at a certain ratio.

37.  The amount of tips receivable depends on (i) the destination of the tour, (ii) the duration of the tour (number of days) and (iii) the number of the tour members.

38.  It is clear that the Plaintiff, like other tourist guides, did not enjoy a stable income. The Plaintiff only led a few tours while he worked as a freelance tourist guide before working for Sun Flower on a full-time basis.  It is therefore not appropriate to refer to his earnings as a freelance tourist guide prior to the Accident in this assessment.

39.  The only evidence before the Court is the Plaintiff’s earnings since October 2009 and the earnings of Mr. Mok.

40.  I shall deal with Mr. Mok’s income first to see whether the Court can rely on this to assess the income of the Plaintiff, and if so, how.

(i) Mr. Mok’s Income

41.  Mr. Mok had provided some information of the tour groups he led for the period between (i) April 2006 and March 2007 (“the First Period”); and (ii) April and December 2008 (“the Second Period”).

42.  For the First Period, Mr. Mok led a total of 28 tour groups (for a tour group of different durations, e.g some members are having a 4 day trip while some are having a 5 day trip and they have the same itinerary for the first 4 days, departing Hong Kong on the same date, it is counted as one tour group) earning a total compulsory tips in the sum of $94,904.  The average per month is $7,909 and the average per group is $3,390.  The average duration of the tour is 5 days.  The average number of group members is 29. 

43.  Mr. Mok’s earnings on other sub-heads are his estimation only. He told the Court that the average income derived from extra excursion were as follow: Thailand (THB 400 or around HK$100 per person), China (HK$60 per person), Korea (KRW 15,000 or around HK$120 per person), Malaysia/Singapore (MYR 30 or around HK$75 per person) and Taiwan (nil).  The average shopping commission per tour group: Thailand (HK$2,000 to $3,000), China (RMB 6,000 to 7,000), Korea (HK$6,000 to HK$7,000), Malaysia/Singapore (HK$5,000) and Taiwan (HK$5,000).

44.  If Mr. Mok is right, it means that Mr. Mok earned a total of around HK$53,600 for extra excursion and HK$156,400 for shopping commission (even assuming 32 members per group but not the actual average of 29).

Destination	No. of Tours	Extra ExcursionHK$(per group)	Sub Total(HK$)	Shopping CommissionHK$(per group)	Sub Total(HK$)
Thailand	4	3200	12800	2500	10000
China	16	1920	30720	7400	118400
Korea	2	3840	7680	6500	13000
Taiwan	2	0	0	5000	10000
Malaysia	1	2400	2400	5000	5000
Total	25	Total	53600		156400

45.  The average monthly earnings from extra excursion is HK$4,467 (HK$53,600/12) and HK$13,033 (HK$156,400/12) for shopping commission.  The average monthly compulsory tips is HK$7,909.

46.  The total monthly earning of Mr. Mok will be HK$30,259.  

Basic Salary	HK$1,750
Insurance Commission	100
Compulsory Tips	7,909
Additional Tips	3,000
Extra Excursion	4,467
Shopping Commission	13,033
	HK$30,259

47.  It is around HK$2,000 less than the lowest figure (HK$32,100) and around HK$12,000 less than the highest figure (HK$42,100) suggested by Mr. Mok.  This difference shows that Mr. Mok’s evidence, to say the least, in relation to the amount of extra excursion and shopping commission, is not reliable and I reject his evidence in this regard.

(ii) The Plaintiff’s Income

48.  The Plaintiff claimed that he was unable to resume work as a tourist guide until sometime in the summer of 2009.  In August, 2009, the Plaintiff began to work as a freelance tourist guide again. He contracted with a Chase Eagle Professional Escort Agency (“Chase Eagle”) which would arrange tours for him. The Plaintiff had to share his tips with Chase Eagle.  Since October 2009, he had led 8 tours.  The last tour before this assessment was between 17 February and 21 February 2010.  In other words, he led 8 tours within 4½ months for a total of 40 tour days and 116 tour members.  The average number of tour day is 5 and the average number of tour member is 14.5

49.  The following are the breakdowns of the Plaintiff’s earning as a tourist guide since 3 October 2009. He earned an average of HK$3737 per tour group.

50.  Mr. Mok told the Court that tour groups with an average of 32 members would be assigned to Grade B+ tourist guide. From the records annexed to his witness statement, one can see that most of the groups he led in the First Period (after his promotion) had 30 or more members. Out of the 25 groups for the Second Period, there were 11 groups with 32 or more members; and five tours were of 30 or 31 members.  These figures support his evidence. I accept that a Grade B+ tourist guide would, on average, be assigned tour groups with 32 members.  

51.  What would then be the size of the Plaintiff’s groups but for the Accident? Ms. Lee submitted that Mr. Mok is more experienced than the Plaintiff (who was just a Grade C tourist guide prior to the Accident) and thus the Plaintiff would have led smaller tour groups. I accept her submission and adopt 30 members per group for this assessment.

52.  What then would be the Plaintiff’s earnings for leading a 30 member group? Since the estimations of Mr. Mok is not reliable, I can only work on the actual earnings of the Plaintiff since October 2009 which, though not entirely accepted by the Defence, are not contradicted by other evidence.

53.  Based on the actual earnings of the Plaintiff, his projected income for a group with 30 members is as follow.

Compulsory Tips	HK$3,510	($117 x 30)
Additional Tips	780	($26 x 30)
Shopping Commission	2,160	($72 x 30)
Extra Excursion	1,260	($42 x 30)
Total:	HK$7,710

54.  The next question is: how many groups would the Plaintiff have led each year? Mr. Mok led 28 tours for the First Period and 25 in the Second Period (9 months).  In the light of the fact that the Plaintiff led 8 tour groups in a period of 4½ months, it is my ruling that the Plaintiff should have been assigned 26 tour groups per year but for the injury.

55.  Which period should then be counted for damages under this head? The Plaintiff complains that he is still suffering from back pain;  unable to lift heavy objects; and cannot walk or sit for over 30 mins.  These are not contradicted by any evidence.

56.  I note that both Dr. Wong and Dr. Lau opined that the Plaintiff should be able to resume his pre-injury work. In the joint medical report, Dr. Lau said that the Plaintiff “only [need] to carry out manual lifting in the correct manner and with the right tools”. By this, I think the doctor meant it would be fine if the Plaintiff lifted the luggages in the correct manner and with the right tools. I do not understand why lifting manner comes into the picture. There is no suggestion whatsoever that the Plaintiff cannot lift a weight of over 5 kg because of his lifting manner. The Plaintiff cannot do it simply because of his injury. I believe no one will doubt a piece of luggage will easily exceed 5 kg and how can the Plaintiff be fit to resume his pre-injury work if he cannot handle luggages for the tour members. The doctor does not state what is or are the right tools to help and there is also no evidence in this regard from the Defence.

57.  Dr. Wong believed that the Plaintiff should be able to resume his pre-injury work but with “reduced efficiency and capacity”. Dr. Wong, at paragraph 16 of the joint medical report, noted the disabilities suffered by the Plaintiff and went on to say that the Plaintiff “should pay caution when lifting and transporting heavy loads and take sensible approach at work”. I do not know which aspect Dr. Wong is referring to by “reduced efficiency”.  The Plaintiff is unable to lift weight of over 5 kg. It means he can lift a luggage if it weighs less than 5 kg and he cannot if it is over 5 kg. There is no question of efficiency here. The Plaintiff has a lower tolerance and endurance in prolonged walking. His problem is not that he can only walk at a slow pace. Once again, it is not a question of efficiency or capacity.

58.  I do not accept the views of the doctors that the Plaintiff is able to return to his pre-injury job. They had not fully considered how the disabilities suffered by the Plaintiff would affect his ability to work in real life. In the light of the disabilities suffered and the job responsibilities of a tourist guide: accompanying the tour group all the time, to check in for the members at the airport and loading/unloading luggages, it is my ruling that the Plaintiff is unable to work as a tourist guide.

(b) Part-Time Job

59.  I do not accept that the Plaintiff worked at the Pub and earned $60 per hour as claimed.  There is no documentary evidence supporting such employment.  The Plaintiff did not report his income in this regard to the Inland Revenue Department.  It should be noted that the Plaintiff began to work on a full-time basis since early May 2006 (less than a month before the Accident). As a full-time staff, he had to work as sales person when he was not required to lead a tour group, it was thus not possible for him to work at a bar and drink with customers for 6 hours after work in the way as the Plaintiff alleged. No award is made in relation to this sub-head.

(c) Quantum

60.  After the Accident, the Plaintiff had the following earnings:

Period	Job Description	Amount (HK$)
10/2006 – 6/2007	Sales Clerk	31,871.00
10/2007 – 3/2008	Tel Sales Promoter	22,410.00
5/2008 – 9/2008	Bartender	32,923.00
10/2008 – 1/2009	Call Centre Agent	24,652.00
4/2009	Telesales	720.00
5/2009 – 8/2009	Cashier	28,000.00
Since 8/2009	Tourist Guide	29,895.50
		170,471.50

61.  The pre-trial loss of earnings up to end of April 2010 (47 months) is HK$705,726 (HK$876,197 – HK$170,471).

   Basic Salary (including MPF): $1,750 x 47 x 1.05 = $86,362

   Insurance Commission: $100 x 47 = $4,700

   Compulsory Tips etc: $7,710 x 26 x 47/12 = $785,135

Post-Trial Loss of Earnings

62.  For post-trial loss of earnings, Mr. Clough submitted that I should award $10,000 per month and to adopt a multiplier of 13.  Ms. Lee submitted that nothing should be awarded under this head.

63.  The Plaintiff can only earn an average of $3,737 per tour group.  The loss of future earnings per year is $1,750 x 12 x 1.05 (basic salary + MPF) + $100 x 12 (insurance commission) + ($7,710 - $3,737) x 26 (compulsory tips etc) = $22,050 + $1,200 + $103,298 = $126,548.

64.  I have considered the following authorities: Kwok Hing Yuen v Goodpoint Engineering Ltd (HCPI 736/2004, Suffaid J, 25 April 2007) lift technician, aged 37 at trial, multiplier 13; Mehmood Khalid v Million Harvest Wharves and Logistics Ltd (HCPI 401/2006, Saunders J, 20 June 2007) Stevedoring Slinger, aged 30 at trial, multiplier 14; Tsang Hin Cheung v Ng Kit Yeung (HCPI 956/2003, Beeson J, 3 January 2005) delivery driver, aged 38 at trial, multiplier 13; Au Hon Ling v Ching Hoi Keung (HCPI 416/2003, Suffiad J, 1 September 2004) carpenter, aged 34 at trial multiplier 14. I am of the view that a multiplier of 12 is appropriate here.  The total loss of future earnings is $126,548 x 12 = $1,518,576.

Special Damages and Future Medical Expenses

65.  I allow special damages at $32,776.

66.  I also allow future medical expenses at $2,000 per year for 12 years.  The total is $24,000.

Summary

67.  The awards are:

Pain, suffering and loss of amenities	$180,000
Pre-trial loss of earnings	$705,726
Loss of future earnings	$1,518,576
Special damages	$32,776
Future medical expenses	$24,000
	$2,461,078

68.  I further make an order nisi that the costs of this assessment be paid by the Defendant to the Plaintiff to be taxed if not agreed.  Certificate to Counsel.  The Plaintiff’s own costs be taxed in accordance to the Legal Aid Regulations.  This order will become absolute 14 days after the handing down of this judgment unless there is application to the otherwise within such period.